On 1 March 2020, Victoria’s new Guardianship and Administration Act 2019 (Vic) came into operation, repealing and replacing the Guardianship and Administration Act 1986 (Vic). Madison Marcus’ Wills & Estates Division Manager in Melbourne, Maryam Mekhail, explains the effect of the changes these new laws have in reshaping the way many of our vulnerable Australians are protected, and introduction of offences to hold representatives accountable.
New Victorian Guardianship Laws providing protection and dignity to vulnerable Australians
Effective 1 March 2020, Victorian Guardianship Laws now provide meaningful protections to adults living with a disability, promoting their human rights and dignity. The changes exemplify principles endorsed by the UN Convention on the Rights of Persons with Disabilities – in particular, that persons with disabilities ought to enjoy ‘legal capacity on an equal basis with others in all aspects of life’. With this view in mind, the changes allow the Victorian Civil and Administrative Tribunal (VCAT) to appoint a supportive Guardian for personal matters or a supportive Administrator for financial matters. This will enable the represented person to make decisions for themselves, with the right assistance.
Appointments of guardians/administrators and supporting appointments
In the past, VCAT held the power to appoint a guardian or administrator to govern the financial, legal or personal matters of those who are unable to make reasonable decisions for themselves because of their disability, including the elderly who have age-related illnesses or diminished decision-making abilities. Whilst VCAT retains these powers, the new laws provide for a more modern and realistic acknowledgement of capacity and decision-making. This is a welcomed move away from the previously restrictive approach of guardianship and administration, and addresses the grey area where an individual may show signs of possessing some decision-making capabilities despite their vulnerability.
The new Act primarily operates to protect and promote the human rights and dignity of persons with a disability and recognises the need to support persons with a disability to make, participate in and implement decisions that affect their lives.
This new approach ensures that the interests of the individual, for which an appointment is made, are safeguarded while encouraging a less restrictive interpretation of the powers granted under the new legislation. In particular, the welcomed changes include the following observations:
- A presumption that a person has decision-making capacity unless evidence is provided to the contrary;
- Recognition that a person has decision-making capacity if they can make decisions with support;
- New eligibility provisions for proposed guardians and administrators; and
- It is now a criminal offence for guardians and administrators (supportive or otherwise) to obtain a financial advantage for themselves or another person, or to cause loss to the represented person or related parties – with penalties being Level 6 imprisonment (5 years maximum), or 600 penalty units (currently $99,132.00), or both. This provision (as well as the compensation provision) also applies to appointments made by VCAT prior to 1 March 2020, but where the offence took place after that date.
When will VCAT make an order?
To make an order under these new laws, VCAT should be satisfied that:
- because of the person’s disability, they do not have decision-making capacity in relation to the personal or financial matters;
- the order will promote the person’s personal and social well-being; and
- the person is in need of a representative having considered:
- the will and preferences of the represented person;
- whether the decisions for which the order is sought may be made by less restrictive, or more informal means;
- the wishes of any primary carer or relative; and
- any important relationships that the person has and benefits in maintaining them.
Powers that you have and preventative action you can take before losing capacity
These new changes are certainly a positive step towards ensuring the human rights and dignity of vulnerable Australians are protected and encouraged.
It is also important to note, that these measures will generally not be necessary if preparation, forward-thinking and preventative actions are taken to ensure that your interests and wishes are best reflected when you have lost capacity, before such loss eventuates. The best way to do this, is to put in place a Power of Attorney and an Appointment of Medical Treatment Decision-Maker. These Estate Planning documents give you the power to appoint who you trust to make the best financial, legal and medical decisions on your behalf, when you have lost the capacity to do so yourself.
For all enquiries in relation to Wills & Estates matters or advice, please contact our expert team today.